It is not structured but it will probably be Canadian biased as I am Canadian. Feel free to participate and add to this forum. Be civil and courteous. The intention is to share and learn from and about both sides of the fence.

For Lawyers in Court

Remember the two Pig Rules:
Pig Rule # 1: Never wrestle with a pigâ€”you only get dirty; and the pig likes it.
Pig Rule # 2:Never try to teach a pig to dance â€“ it wastes your time; and it only annoys the pig. :p
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Lawyer Behaviour
9. â€œLawyers should note that they meet other lawyers on the way up and on the way down. â€¦ you meet other lawyers and must be able to negotiate with them at all times. â€¦ since 98% to 99% of most lawsuits get settled without going to Court, it is especially important to keep good lines of reasonable communications open.â€

I like a good joke as much as the next person. That said, like many in my profession, I get sensitive about lawyer jokes. Often, they are just cheap shots that in no way reflect the reality of what most of us do. I particularly despise this one, â€œHow can you tell when a lawyer is lying? His lips are moving.â€

Here is a rundown of some paths you can take if youâ€™ve become fed up with the way your lawyer is treating you.

1. Fire Your Lawyer
The first step in fixing your problem will be ending the relationship as soon as possible. Remember, you are the boss. Your lawyer must do what you say and not the other way around. It is your lawyerâ€™s job to advise you and to steer you in the right direction. However, if you do not feel like he or she is doing that effectively, you have every right to call it quits.

If your lawyer lied, you can fire your lawyer regardless of your fee agreement and even if your case is currently in court. Granted, your current attorney is entitled to proper compensation (unless you can prove otherwise) for the services he or she performed up to the time of the dismissal.

Just be aware, however, that firing a lawyer after you have filed a lawsuit requires the courtâ€™s permission. This means that, once negotiations have fallen through and your attorney files a lawsuit against the other party, your lawyer must be released by the court in order for the firing to be official. The court will approve this type of request so long as it does not delay the proceedings. However, if the court finds that you have good cause to fire your attorney the court may approve the request regardless of circumstance.

2. Get Your Retainer Back
If you have advanced your attorney money for services that have not yet been rendered, you have the right to have that money returned to you.

When you advance money to your attorney for future services, the funds must be kept in a trust account. This money should be kept completely separate from the attorneyâ€™s money. In fact, if the money that youâ€™ve advanced to your attorney is not in the trust account, and the attorney cannot account for it, he can get into huge trouble with the Nevada Bar.

3) Request Refund for Services Rendered
If your lawyer has profited from his unethical behavior, you may have grounds to challenge the attorneyâ€™s fees that he has already collected. If the ethical issue is slight or unrelated to the fees charged, it is not likely that the court will order a return of the legal fees. However, if the lawyer has acted in a severely unethical manner, a return of all or part of the fees could be ordered.

If you are trying to get your fees returned, here are some questions that you can consider to help you determine what kind of chance you might have winning your argument:

Did my lawyer lie to me at any point in the representation?
Did my lawyer fail to explain how this matter would be billed?
Did my lawyer reveal any confidential information to third parties without my consent?
Was my lawyer conflicted in any way from providing me with appropriate representation?
Did my lawyer disobey any of my lawful instructions (not including disagreements which were discussed and resolved)?
Did my lawyer treat advance or retainer payments as his own funds, or otherwise misappropriate my property?
Was my lawyer incompetent in his performance of legal services?

Protect Yourself

Remember that you control the relationship with your lawyers. So, if you are ever dissatisfied with his or her performance, and you have good reason to feel that he or she has been dishonest in dealing with you, it is fully within your right to move on from that lawyer and hire someone else.

Parent wants to control investments for child's trust, but he can't
Lynne Butler-Lawyer-East Coast-Canada

Parents are used to having the authority to control money on behalf of their minor children. But what about when funds are left in trust for a child and the parent is not the person who is put in charge of the trust? Parents have no authority in that case, as one reader found out when he wrote to me recently:

"I am as well as my daughter, beneficiaries to my fathers estate. With one of his sisters as executor, things seemed to go well until time for distribution. She seems to think that I am obligated to acquire a sin # for my daughter so that her portion can go into an RESP through the executors personal broker. I kindly refused, stated that I have my own broker that has offered me better investment vehicles with more solid and guaranteed profits. Her broker was fined back in 2014 for off book investing which resulted in lost investments. Since I have made these revelations, she flat out refuses to budge and is steadfast in her decision. What would be my best option to have these funds released with the least amount of hassle?"

You can't do this without "hassle" because you'd have to ask a judge to allow it. There are rights and responsibilities that you are ignoring.

I'm assuming that your daughter's share is being held in trust to a certain age. That being the case, the executor is also the trustee of your daughter's trust, unless the will says otherwise. This means she has full discretion to invest the funds as she sees fit and to choose her investment advisors. That's her job as executor and trustee. If she makes bad decisions and causes a loss to the estate, she can be held personally liable for the loss.

Parents find it hard to believe they have no say in it, but they don't. Parents have no control over something that is in someone else's estate, since it has nothing to do with them. The will has the final say as to who makes the decisions regarding the trust. If your father had wanted you to be the trustee of your daughter's inheritance, he could have said so in his will.

An executor is not permitted to delegate any of her duties that require discretion or judgment. So, she can hire a broker as long as she is making the decisions as to investment goals, timeline, etc, but she can't just hand the whole thing over to someone (including you) and wash her hands of it. If she did (Executor), she would be in breach of her fiduciary duty to the estate. So, she isn't being difficult on purpose; she is bound by rules.

You also need to consider that when funds are left in trust for a minor (or anyone, for that matter), the will states what would happen with the funds if the child passed away before reaching the stated age of inheritance. If the funds were paid over to you, the executor would lose control of them and if your daughter didn't live to the age of inheritance, the executor would be unable to complete her duties to that remaining beneficiary.

In my opinion, it would require a court order because you are asking to overturn a major part of your father's will in removing his trustee from this trust. I doubt that you would be successful in your application if it were based solely on fears that things might go wrong. Anyone could make that claim. Unfortunately you'd have to wait until the investments actually did go wrong before you'd be justified in trying to cut out her chosen broker.

I know this isn't the answer you wanted to hear, but as far as I can tell, the executor is just doing her job the way she should. You should be providing her with a SIN number.

OTHER-
When we leave an executor in charge of our estate, we assume that he or she is going to act according to our wishes, and in the best interests of us and our beneficiaries. It's a real leap of faith. In most cases, our choice works out.
This is why I always tell executors to be as forthcoming and honest with information as they possibly can within the parameters of their specific estate.

It's really not all that unusual that an estate ends up not having enough assets to cover all of the debts of the deceased. Even when there are plenty of assets, their value can quickly be eaten up by debts and taxes. When this happens, what is an executor to do? Do some creditors have priority? Should he pay out those who make the most fuss just to get rid of them? What are the ramifications of paying some but not others?

Lawyer David Waites recently tackled this topic in a blog post that I think executors will find useful. As with all decisions that executors must make, there are risks and benefits to all available options, so most executors will end up getting help with insolvent estates if the debts are large. Click http://www.advocatedaily.com/who-gets-p ... state.html to read Mr. Waites' article in www.advocatedaily.com.

Negligence -is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.

Gross negligence -involves greater neglect than simply a failure to use reasonable care. It involves a high degree of negligence tantamount to intentional acting or indifference as to whether the law is complied with or not.

So, you think it's a good idea just to handle the estate yourself without telling the executor?
Lynne Butler-Lawyer-East Coast Canada

Me..the following probably applies to most countries.

Even after all these years, I am astonished at the things people take into their own hands without even a clue about what they're doing. Legal rights are tossed to the wind when someone thinks they know a cheaper or easier way than the law prescribes. I know that sometimes people get away with these things because nobody else objects or realizes what's happening but that doesn't make it legal.

Recently a reader wrote me a note that literally made my jaw drop. He or she decided not to worry about small details like not being the executor and just barged forward with the estate, regardless of rights or laws. Read on for the reader's note and my comments.

"My father passed away. I am not the executor, a relative is, however I am just doing it myself to save money as everything was straight forward and I am paying all bills as they come in. I felt there was no need to probate. So far I have issued one cheque to myself and one to my sister in equal amounts, (as will states it is 50-50 between us) and we are leaving several thousand in the account to cover bills as they come in. Question we have just received a cheque to the Estate of my Father, so don't know what to do with it. Can we open an estate bank account if we did not probate and are not the Executor?"

What on earth are you thinking?

None of the things you've been deciding are legally your decisions. You didn't think probate was necessary? That's not your call. You didn't hand over the will to the executor? That's not just heavy-handed, it's unlawful. YOU WROTE CHEQUES TO YOURSELF?

I simply cannot believe how people stumble through these things without either landing in jail or being sued for everything they own. I suppose the worst doesn't happen simply because the other people around you don't have any more of a clue than you do and just let you get away with it because they don't know any better.

No, you can't open an estate bank account! Why on earth would you be allowed to do that? Do you honestly think just anyone can open an account for other people's money? Just to be clear here, you have absolutely no legal right to accept money addressed to your father's estate, nor to open accounts for him, and certainly not to write cheques to people out of his funds.

Naming someone as an executor is not just filling in a blank on a piece of paper. It conveys a legal right and a legal responsibility to fulfill the directions in the will. Your father chose someone to look after his affairs and it isn't you. You have simply stepped in and removed the executor's legal right to administer the estate because you felt like it. The executor could sue you for that. Does the executor know this is happening? Is he or she allowing the estate to be carried on by someone else with no legal authority? If so, you may have placed him or her in a dangerous legal situation as well.

Seriously, fix this, okay? Stop trying to open an estate account before the bank catches on to what you're doing and shuts everything down. Get together with the executor and hand over the original will and all your paperwork. Let the executor figure out how to salvage the situation and hope that he or she doesn't decide to sue the pants off you while setting all of this straight.

CDN-Grandma's will is pretty unpopular. Was she too old to make a will?
Lynne Butler-Lawyer - East Coast-Canada
Thursday July 7/16

Isn't it funny how an older person who makes an unpopular will is often accused by his or her family of not knowing what he or she was doing? Only the ones who agree with the disposition under the will are the ones who think the senior had mental capacity. A reader recently sent me a note which is a great example of that sort of thinking:

"My grandma made a new will when she was 95. My aunt always shared my grandma's cottage with us while she acted as grandma's power of attorney, and all of us grand-kids have keys to it. Now my grandma is willing the cottage to one of her daughters and we think it's because she didn't want it sold out of the family. The one who is getting the cottage is not being fair or letting us use it. Is there any law saying 95 is too old to make a will?"

No, there is no law saying that 95 is too old to make a will. I personally have made wills for people more than 100 years old. The litmus test is not age but mental capacity and plenty of seniors have full mental capacity for their entire lives.

I'm having trouble with your assumption that what your grandmother says in her will is not what she really wants. If she didn't want to leave her cottage to her daughter, she didn't have to. If she wanted to leave it to her grandchildren, she could have done so. The fact that her intentions for her own property do not match your wishes just doesn't matter. She can do what she wants with her own cottage. You'll have to suck it up.

It also baffles me that you think giving the cottage to her daughter somehow defeats an intention to keep it in the family. Last time I looked, a daughter was family.

Assuming that your grandmother has mental capacity to make a will, she can leave her property to whomever she wishes. It's unfortunate for you that it upsets the status quo, but that does not mean you should be looking for ways to overturn her will. I notice that whenever a senior makes a financial decision that is unpopular, his or her family members automatically turn to the possibility of mental frailty on the part of the senior, rather than looking at the possibility of sour grapes by the rest of the family.

I cannot tell from your question whether your grandmother made her will before your aunt started acting as her POA. In terms of mental capacity, this could be problematic. If she made her will while the POA was in effect, it could cast doubt on her ability to make the will, based on the fact that a POA is not usually used while the donor still has capacity. Even that is not a hard-and-fast rule though, because sometimes seniors do put immediate enduring POAs into effect if they want help with the banking.

You should know that if your grandmother's will were to be challenged successfully, you are not likely to be a beneficiary of her estate anyway. Intestacy laws would not include you unless your parent on your grandmother's side died before your grandmother did. So think twice before you start wishing that will away.